Stafford v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge SMITH-RIBNER.

The majority affirms the order of the Workers’ Compensation Appeal Board (Board) agreeing with the Workers’ Compensation Judge (WCJ) and dismissing Claimant’s petition to review the adverse utilization review determination finding that his treatment and all dosages/frequencies of his medications were not reasonable and necessary from July 18, 2002 and into the future. Claimant is being treated for injuries sustained on June 12, 2001 when he fell about twelve feet from a scaffold- at work and landed on a cement floor, resulting in breaks to various parts of his body and five surgeries over the next two years on his left shoulder, left wrist, and left elbow. Employer failed to pay for portions of Claimant’s prescription costs, and he seeks review of the Board’s decision to affirm dismissal of the petition to review.

The Board expressed concern that the result it reached in Claimant’s case was “seemingly harsh,” but it nonetheless concluded that it was bound to follow the Court’s decision in County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa.Cmwlth.2005) (holding that a WCJ lacks jurisdiction to determine reasonableness and necessity of medical treatment if a report by peer physician is not prepared because provider failed to produce medical records to reviewer). Dr. Paul Heberle, medical provider, did not provide his records to the utilization review organization, and Dr. Paul Miller, the reviewer, consequently issued the report finding that Dr. Heberle’s treatment, including medications, was unreasonable and unnecessary.

Employer filed its utilization review request in August 2004 pertaining to all treatment and medications prescribed by Dr. Heberle from July 18, 2002 and into the future. Claimant was treated with pain medication for his work injury, but Employer refused to pay the prescription costs thereby forcing Claimant to pay. In dismissing Claimant’s petition to review, the WCJ stated that he “will not reward the failure of the provider under review to cooperate with the URO by accepting jurisdiction and allowing the provider under review to obtain an initial review of his records by a[WCJ].” WCJ’s Findings of Fact No. 6, § 2. I agree -with Claimant that this is not a case of rewarding Dr. Heberle because the invoices under review are not those of Dr. Heberle but rather are the prescription costs that Claimant was required to pay.¹ No funds are due Dr. Heberle, and the legislative purpose behind Act 44 therefore does not govern the outcome of this case.

The dismissal of Claimant’s petition to review the utilization review determination constitutes a clear denial of his due process rights, contrary to the majority’s con-elusion, which forecloses any further efforts by Claimant to obtain reimbursement from Employer of the prescription costs that Claimant was required to pay to treat his work injury. The majority’s decision under these circumstances is more than “seemingly harsh.” Rather, it represents a blatant denial of Claimant’s due process rights to a hearing to protect his interests because of the mechanical application of the principle stated in Geisler and the erroneous application of the reasoning in Miller v. Workers’ Compensation Appeal Board (Pavex, Inc.), 918 A.2d 809 (Pa.Cmwlth.), appeal denied, 929 Pa. 646, 929 A.2d 646 (2007), which denied a claimant’s due process claim because he failed to establish the deprivation of a protected interest, i.e., an actual entitlement. Claimant submits that he is entitled to a hearing and merely seeks an opportunity to establish his claim despite Dr. Heberle’s failure to provide records to the reviewer. Neither Geisler nor Miller has decided this issue. I therefore dissent.

1 . In an effort to rebut the dissent, the majority in a footnote suggests that because Employer requested utilization review of Claimant’s treatment and his prescriptions Dr. Heberle was at risk of not receiving payment for failure to provide his medical records. Also pertinent, in the majority’s view, is the fact that WCJ Edward Pastewka’s January 22, 2004 decision granting the review petition filed by Claimant did not mention prescriptions to treat his cervical spine nor did that decision or the current decision by WCJ Albert Wehan, III refer to Claimant’s out-of-pocket expenses for prescriptions. The obvious reason for any omission of prescription costs in both decisions is that in the first the only issue was whether Claimant injured his cervical spine in the June 2001 fall, and in the second the determination dealt solely with the lack of jurisdiction because the utilization review organization and the utilization reviewer did not receive Dr. Heberle’s medical records.

In both instances, there was no basis for determining Claimant's prescription costs. Nonetheless, there is no dispute that Claimant was required to pay for his pain medications to treat his work injuries or to make the required co-payments once he became insured under his wife’s insurance plan in July 2003. See Notes of Testimony, December 15, 2004 hearing. Nor is there any dispute that Claimant’s petition for review was based solely upon Employer’s failure to reimburse Claimant for prescription costs to treat his work injuries, and there is no request by Dr. Heberle for review of the adverse utilization review determination.

The most disturbing aspect of this case, however, is the increasing failure of the Court to apply the humanitarian purposes of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2626, to the detriment of the injured worker and to the destruction of the concept of liberal construction of the Act. See Sell v. Workers’ Compensation Appeal Board (LNP Eng’g), 565 Pa. 114, 771 A.2d 1246 (2001) (holding that the Act is remedial in nature, intended to benefit injured workers and is to be liberally construed). There is no express statutory prohibition against a WCJ’s resolving a claim for reimbursement where a claimant, as here, has been required to pay his own funds for prescription costs for treating undisputed work injuries.